Absent exceptional circumstances, all purchases of Goods and Services should be made through an open and competitive process. An open, competitive process ensures fair and equitable treatment of Suppliers, avoids conflicts of interest, increases value, protects against fraud, waste, or misuse, and builds trust and confidence in University processes.
The University uses three methods of solicitation for all purchases. These methods include formal competition, informal competition, and non-competitive procurement. This policy sets the requirements for purchasing Goods and Services under the non-competitive procurement method of solicitation. Non-competitive purchases are restricted and should only be used to address special needs or circumstances during emergencies, as outlined in this policy. There are two non-competitive purchase categories: Sole Source Contracts and Emergency Purchases.
1. Sole Source Contracts. A sole-source contract (sometimes called a “no-bid contract”) is a contract awarded to a single Supplier through a non-competitive process. Because no competitive process occurred, the University should only enter sole-source contracts when justified and necessary to meet the University’s needs. Accordingly, the University may enter a sole source contract for Goods and Services only when the Goods or Services are restricted to one Supplier or brand name because of the specifications needed by the department or specific restrictions imposed by a fund’s provider. A Good or Service available in the OU Marketplace, an existing University, or a Statewide contract cannot be acquired via sole source.
1.1. Process for Requesting Sole Source Purchase. The department seeking a sole-source contract must provide appropriate justification. The justification should include all information and materials demonstrating the restrictions or requirements. Sole source justification may exist when the Good or Service is (i) only available from one source, (ii) unique, special, or involves specific professional or technical expertise; (iii) compatible with existing equipment or systems, (iv) an addition to limited or proprietary systems like increase in licenses, updates, specialized replacement parts, etc., (v) limited or available within specific geographical boundaries or sales territories. The department shall complete the Sole Source Justification Form and include all appropriate or necessary documentation supporting the sole source request. The cost must be fair and reasonable.
1.2. Considerations. When submitting a sole source justification, departments should consider the following.
· A requirement for a particular proprietary Good or Service is insufficient justification if there is more than one potential Supplier for that Good or Service.
· The cost of a Good or Service alone is not sufficient justification.
· Absent harm to the University, a timing delay by itself is not sufficient justification.
· Personal or professional preference cannot serve as a justification.
· All justifications must be based on objective, verifiable criteria or information.
· A single response to a solicitation is not sufficient justification.
1.3. Examples. A non-exhaustive list of justified sole source purchases is below:
· Only one manufacturer makes the Goods
· Donation, grant, award, or other agreement names a specific brand or Supplier
· Goods must be identical to equipment already in use to ensure compatibility with existing equipment or systems and is available only from one Supplier
· Maintenance or repair (including replacement parts) by the original equipment manufacturer
· Patented or copyrighted materials available only from the patent or copyright holder
· Medical or surgical decision by a medical professional, where a specific brand is required for patient care
· Service provider is singularly qualified based on their expertise, background, or specialized talent, knowledge, or experience that is necessary for the task
· Market Survey determined that other Suppliers cannot satisfy the University’s needs or requirements
1.4 Sole Source Acquisitions Using Federal Funds. Federally funded sole source purchases are limited to (i) Goods or Services available only from a single source (describe the steps taken to determine there are no other Suppliers, (ii) a public exigency or emergency for the requirement does not permit a delay resulting from Informal or Formal Solicitations, (iii) the Federal Awarding Agency or PTE expressly authorizes noncompetitive proposals in response to a written request from the University, or (iv) after solicitation of a number of sources, competition is determined inadequate.
1.5 Sole Source Determination. The Associate Vice President of Procurement (or designee) shall review and approve all sole source justifications.
1.6 Sole Source Limitations. To ensure the University continues to purchase Goods and Services through open and competitive processes, sole-source contracts shall be limited to one year, after which Procurement will reassess whether requirements or market conditions have changed to no longer justify a non-competitive, sole-sourced contract.
1.7 Purchasing Processing Required. Other than the requirement for competition, sole-source contracts must comply with all University processing, review, and approval requirements.
2. Emergency Purchases. During an Emergency Condition, the Associate Vice President for Procurement may make or authorize others to make emergency procurements when a threat exists to public health, welfare, or safety.
2.1.1. Emergency Condition Defined. As used in this Section 2.1.1, Emergency Condition means any condition creating a threat to public health, welfare, or safety where a delay in obtaining Goods or Services would seriously threaten University operations, the preservation or protection of property, or the health or safety of any person. Emergency Conditions include significant emergencies declared by the President; National Weather Service forecasted weather events, hurricanes, tsunamis, floods, ice storms, landslides or similarly cataclysmic occurrences, or other acts of God; extended power outages; epidemics, pandemics, or related outbreaks if declared by the World Health Organization or federal government; county, state, or national declaration(s) of emergency as issued by an authorized government entity; war, acts of terrorism, or acts of public enemies; sabotage, riots, or civil disturbances; or material destruction of facilities.
2.1.2. Limitations. Emergency procurement shall be limited to those Goods, Services, or construction items necessary to meet or alleviate the Emergency Condition. The cost must be fair and reasonable.
2.1.3. Reporting and Documentation. All material purchases made during an Emergency Condition shall be reported to the Board at the earliest opportunity but no later than the next regularly scheduled meeting.
